Source: PLoS Computational Biology
Computing is ubiquitous in every domain of scientific research. Software is the means by which scientists harness the power of computers, and much scientific computing relies on software conceived and developed by other practicing researchers. The task of creating scientific software, however, does not end with the publication of computed results. Making the developed software available for inspection and use by other scientists is essential to reproducibility, peer-review, and the ability to build upon others’ work. In fulfilling expectations to distribute and disseminate their software, scientist-programmers are required to be not only proficient scientists and coders, but also knowledgeable in legal strategies for licensing their software. Navigating the often complex legal landscape of software licensing can be overwhelming, even for sophisticated programmers. Institutional technology transfer offices (TTOs) exist to help address this need, but due to mismatches in expectations or specific domain knowledge, interactions between scientists and TTO staff can result in suboptimal outcomes.
As practitioners in the scientific computing and technology law fields, we have witnessed firsthand the confusion and difficulties associated with licensing scientifically generated software. SBGrid.org is a consortium of scientific software developers and users in hundreds of biomedical research laboratories worldwide. As facilitator and middleman between developers and end-users, we commonly assist in the dissemination and use of scientifically generated software. Through research and advocacy, the Samuelson Law, Technology and Public Policy Clinic works with software developers and other creators on licensing issues, particularly issues related to facilitating “open access” to scientific, technical, or creative materials. Together, we offer a primer on software licensing with a focus on the particular needs of the scientist software developer. The aim of this guide is to help scientists better engage with their institutional TTO when choosing software licenses.
Designing Fees for Music Copyright Holders in Radio Services (PDF)
Source: Research Papers in Economics
This paper investigates which is the most desirable payment schedule, from a social welfare standpoint, for compensating IPR holders for music broadcast by radio stations. A model of a radio station that acts as a monopoly with respect to listeners and sells ads in a competitive market is presented. Two types of fees, ad valorem and per unit, are examined. Exploiting the similarity between taxes and fees, we extend results from taxation theory in two-sided markets to show that the case where only one side (i.e. advertisers) pays, while the other (the listeners) receives the service for free, di§ers somewhat from the case thus far considered by the literature, in which both sides pay. The results mildly support the prevailing regulatory approach, based on ad valorem fees.
New GAO Reports and TestimoniesSource: Government Accountability Office
1. U.S. Postal Service: Field Offices’ Role in Cost-Reduction and Revenue-Generation Efforts. GAO-12-506, April 25.
Highlights – http://www.gao.gov/assets/600/590405.pdf
2. Patent and Trademark Office: New User Fee Design Presents Opportunities to Build on Transparency and Communication Success. GAO-12-514R, April 25.
1. Agency Operations: Agencies Must Continue to Comply with Fiscal Laws Despite the Possibility of Sequestration, by Susan A. Poling, deputy general counsel, before the House Committee on the Budget. GAO-12-675T, April 25.
Highlights – http://www.gao.gov/assets/600/590394.pdf
2. Aviation Safety: FAA Is Taking Steps to Improve Data, but Challenges for Managing Safety Risks Remain, by Gerald L. Dillingham, Ph.D., director, physical infrastructure issues, before the Subcommittee on Aviation, House Committee on Transportation and Infrastructure. GAO-12-660T, April 25.
Highlights – http://www.gao.gov/assets/600/590390.pdf
3. Medicaid: Federal Oversight of Payments and Program Integrity Needs Improvement, by Carolyn L. Yocom, director health care, before the Subcommittees on Health Care, District of Columbia, Census and the National Archives and Regulatory Affairs, Stimulus Oversight and Government Spending, House Committee on Oversight and Government Reform. GAO-12-674T, April 25.
Highlights – http://www.gao.gov/assets/600/590391.pdf
4. Missile Defense: Opportunities Exist to Strengthen Acquisitions by Reducing Concurrency and Improving Parts Quality, by Cristina Chaplain, director, acquisition and sourcing management, before the Subcommittee on Strategic Forces, Senate Committee on Armed Services GAO-12-600T, April 25.
Highlights – http://www.gao.gov/assets/600/590411.pdf
Intellectual Property and the U.S. Economy: Industries in Focus
Source: U.S. Department of Commerce
Innovation—the process through which new ideas are generated and successfully introduced in the marketplace—is a primary driver of U.S. economic growth and national competitiveness. Likewise, U.S. companies’ use of trademarks to distinguish their goods and services from those of competitors represents an additional support for innovation, enabling firms to capture market share, which contributes to growth in our economy. The granting and protection of intellectual property rights is vital to promoting innovation and creativity and is an essential element of our free-enterprise, market-based system. Patents, trademarks, and copyrights are the principal means used to establish ownership of inventions and creative ideas in their various forms, providing a legal foundation to generate tangible benefits from innovation for companies, workers, and consumers. Without this framework, the creators of intellectual property would tend to lose the economic fruits of their own work, thereby undermining the incentives to undertake the investments necessary to develop the IP in the first place. Moreover, without IP protection, the inventor who had invested time and money in developing the new product or service (sunk costs) would always be at a disadvantage to the new firm that could just copy and market the product without having to recoup any sunk costs or pay the higher salaries required by those with the creative talents and skills. As a result, the benefits associated with American ingenuity would tend to more easily flow outside of the United States.
IP is used everywhere in the economy, and IP rights support innovation and creativity in virtually every U.S. industry. While IP rights play a large role in generating economic growth, little attention has been given to identifying which industries produce or use significant amounts of IP and rely most intensively on these rights. This report begins such an investigation by developing several industry-level metrics on IP use and employing these measures to identify a set of the most IP-intensive industries in the U.S. economy. To develop the industry-level metrics discussed, several databases were used, some of which (for the patent and trademark analyses) are publicly available. In the future, more user-friendly sets of these patent and trademark data will be made available on the U.S. Patent and Trademark Office (USPTO) website.
This report employs USPTO administrative data to identify the industries that most intensively use the protection offered by patents and trademarks. For copyrights, the report identifies the set of industries primarily responsible for both the creation and production of copyrighted materials. The report then uses standard statistical methods to identify which American industries are the most patent-, trademark-, and copyright-intensive, and defines this subset of industries as “IP-intensive.” Using data collected from sources across the U.S. government, the report examines both the important trends and economic characteristics of these highly IP intensive industries and their meaningful contributions to the U.S. economy. There are several important findings contained in the report.
According to the analysis in this report, the direct and indirect employment in these industries is substantial: Direct employment in the subset of most IP-intensive industries identified in this report amounted to 27.1 million jobs in 2010, while indirect activities associated with these industries provided an additional 12.9 million jobs throughout the economy in 2010, for a total of 40.0 million jobs, or 27.7 percent of all jobs in the economy.
CBP, ICE Release Report on 2011 Counterfeit Seizures
Source: U.S. Department of Homeland Security
Theft of American intellectual property is a serious crime, and U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement announced today that their vigorous, ongoing efforts to protect America from the trade in counterfeit and pirated goods during fiscal year 2011 resulted in 24,792 seizures, a 24 percent increase over 2010.
Many fake goods seriously threaten the health and safety of American consumers and our national security. With this in mind, CBP and ICE continued to step up enforcement against these dangerous products resulting in a 44 percent increase in the number of seizures of health and safety products that could have harmed Americans. The value of these seizures soared to more than $60 million due to increases in pharmaceutical and perfume seizures.
Despite the significant increase in the number of seizures, the domestic value for seizures in fiscal year 2011 decreased by five percent to $178.9 million and the manufacturer’s suggested retail price declined slightly to $1.1 billion. This is primarily due to a shift toward using international mail, express courier and consolidated shipping services to import counterfeit and pirated goods.
“The growth of websites selling counterfeit goods directly to consumers is one reason why CBP and ICE have seen a significant increase in the number of seizures at mail and express courier facilities,” said Acting CBP Commissioner David V. Aguilar. “Although these websites may have low prices, what they do not tell consumers is that the true costs to our nation and consumers include lost jobs, stolen business profits, threats to our national security, and a serious risk of injury to consumers.”
+ Full Report (PDF)
New GAO Reports
Source: Government Accountability Office
1. Food and Drug Administration: Better Coordination Could Enhance Efforts to Address Economic Adulteration and Protect the Public Health. GAO-12-46, October 24.
Highlights - http://www.gao.gov/highlights/d1246high.pdf
2. Statutory Copyright Licensing: Implications of a Phaseout on Access to Television Programming and Consumer Prices Are Unclear. GAO-12-75, November 23.
Highlights - http://www.gao.gov/highlights/d1275high.pdf
Pricing under the Threat of Piracy: Flexibility and Platforms for Digital Goods (PDF)
Source: Research Papers in Economics (Cowles Foundation Discussion Paper)
We consider the optimal design of flexible use in a digital-rights-management policy for a digital good subject to piracy. Consumers can acquire the digital good either as a licensed product or as an unlicensed copy. The ease of access to unlicensed copies is increasing in the flexibility accorded to licensed copies. The content provider has to trade off consumers’ valuation of a licensed copy against the sales lost to piracy. We enrich the basic model by introducing a “secure platform” that is required to use the digital good. We show that the platform allows for the socially optimal provision of flexibility for the digital good but only if both are sold by an integrated firm.
Technology and the Innovation Economy
Source: Brookings Institution
Innovation and entrepreneurship are crucial for long-term economic development. Over the years, America’s well-being has been furthered by science and technology. Fears set off by the Soviet Union’s 1957 launch of its Sputnik satellite initiated a wave of U.S. investment in science, engineering, aerospace, and technology. Both public and private sector investment created jobs, built industries, fueled innovation, and propelled the U.S. to leadership in a number of different fields.
In this paper, I focus on ways technology enables innovation and creates economic prosperity. I review the range of new advances in education, health care, and communications, and make policy recommendations designed to encourage an innovation economy. By adopting policies such as a permanent research and development tax credit, more effective university knowledge commercialization, improving STEM worker training, reasonable immigration reform, and regional economic clusters, we can build an innovation economy and sustain our long-term prosperity.
+ Full Paper (PDF)
Analysis of Small Business Innovation in Green Technologies
Source: U.S. Small Business Administration
- Small innovative firms are 16 times more productive than large innovative firms in terms of patents per employee. Small innovative firms with fewer than 500 employees produced 27 patents per 100 employees, compared with 1.6 patents per 100 employees in large firms with 500 or more employees.
- Patents of the small firms in the study were cited 79 percent more by recent patents than is typical for other patents of the same age and patent classification. Patents of the large firms were cited just slightly above average. The small firms in the study also outperformed the large firms in patent originality, generality, and growth.
- U.S.-based organizations were responsible for 43 percent of U.S. patents in green technologies in 2005-2009, while Japanese organizations were responsible for 32 percent. No other country had more than 6 percent.
- Green patents form a higher percentage of the portfolios of small firms with at least one green patent (20 percent on average) than of the large firms’ portfolios (1.5 percent).
- Green patents from small firms are cited 2.5 times as frequently as green patents from large firms.
- While small firms account for about 8 percent of all U.S. patents in the U.S. innovative firm database, they account for 14 percent of green technology patents. Small firms account for more than 32 percent of the patents in both smart grids and solar energy, and 15 percent of patents in batteries and fuel cells.
- Eighty percent of the “prolific” inventors—those with five or more recent green patents with a citation index of 1 or more—from small green technology firms had previously worked at large companies, or large government or university labs.
Intent Standard for Induced Patent Infringement: Global-Tech Appliances, Inc. v. SEB S.A. (PDF)
Source: Congressional Research Service (via Pierce Law IP Mall)
While § 271(a) of the Patent Act (35 U.S.C. § 271(a)) creates liability for someone who directly infringes a patent (by the unauthorized use of a patented invention), § 271(b) of the act provides indirect infringement liability for someone who “actively induces” another party to engage in infringing activities. “Inducement” is a theory of indirect patent infringement, in which a party causes, encourages, influences, or aids and abets another’s direct infringement of a patent. In Global-Tech Appliances, Inc. v. SEB S.A., the question was the legal standard for the mental state necessary for a defendant to be liable for actively inducing infringement under § 271(b). The U.S. Court of Appeals for the Federal Circuit had ruled that a plaintiff may hold a defendant liable for induced patent infringement by showing that the defendant had a “deliberate indifference of a known risk” that the induced acts may violate an existing patent.
On May 31, 2011, the Supreme Court rejected the Federal Circuit’s “deliberate indifference” standard. By a vote of 8-1, the Court ruled that induced infringement under § 271(b) requires actual knowledge that the induced acts constitute patent infringement. However, in a somewhat surprising step, the Court declared that this statutory knowledge requirement could be satisfied by proof of the accused inducer’s “willful blindness” (that is, the defendant subjectively believes there is a high probability that a patent exists and takes deliberate actions to avoid learning of that fact). This is the first time that the Supreme Court has applied “willful blindness,” a criminal law doctrine, to a civil patent infringement case. It is also the first time that the Court has held that proof of willful blindness can substitute for actual knowledge, thus establishing a standard not only for patent infringement cases brought under § 271(b), but also potentially for all federal criminal cases involving knowledge.
Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress (PDF)
Source: Congressional Research Service (via Pierce Law IP Mall)
Technological developments related to the Internet benefit consumers who want convenient ways to view and hear information and entertainment content on a variety of electronic devices (such as televisions, radios, computers, mobile phones, video game consoles, and portable media players). New technologies offer the potential to help copyright holders promote their creative works for artistic, educational, and commercial reasons. However, new technologies may increase the risk of infringement of the copyright holders’ rights because they often provide faster, cheaper, and easier means of engaging in unauthorized reproduction, distribution, and public performance of copyrighted works than previous technologies. The widespread consumer use of high-speed Internet connections as well as increased reliance on data storage offered by “cloud computing” services may also contribute to infringement problems.
One of these new technologies enables the “streaming” of copyrighted content over the Internet from a website to an end user. There are many legitimate streaming websites such as Hulu, Netflix, YouTube, and HBO GO that offer on-demand streams of television programs, motion pictures, live sporting events, and sound recordings. However, streaming technology can also be misused for facilitating copyright infringement online. So-called “rogue” websites serve as an alternative to the authorized websites, willfully streaming unlawfully obtained copyrighted content to users and thereby infringing the copyright holder’s exclusive right to control public performance of the work. By offering consumers an unlawful alternative for viewing streaming content, these rogue websites may reduce the number of people who would otherwise visit the legitimate providers of copyrighted material.
To enforce their intellectual property rights, copyright holders may file a lawsuit against the alleged infringer. In addition to these civil remedies, the U.S. Department of Justice has the power to criminally prosecute particularly egregious copyright infringers (repeat and large-scale offenders) in order to impose greater punishment and possibly deter other would-be infringers. Yet under the current law, many illegal streaming websites have evaded prosecution due largely to a disparity regarding the criminal penalties available for those who willfully infringe copyrights by means of reproduction and distribution (a felony offense in certain circumstances) and those who infringe copyrights by means of public performance (a misdemeanor).
In March 2011, the U.S. Intellectual Property Enforcement Coordinator recommended Congress amend the law to harmonize penalties for the act of illegally streaming copyrighted content with those applicable to downloading and peer-to-peer file sharing of such protected material: “To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.”
Following this recommendation, S. 978 was introduced in the 112th Congress. Commonly referred to as the Commercial Felony Streaming Act, S. 978 would authorize a maximum five-year prison sentence for those who, without authorization, willfully stream commercially valuable copyrighted material for purposes of commercial advantage or private financial gain. It also expands the current felony offense of unauthorized distribution of a pre-release commercial copyrighted work to include “public performance” of such work as an additional basis for prosecution. The Senate Judiciary Committee approved the bill on June 16, 2011, by voice vote, and Senator Leahy reported the bill on June 20 without amendment.
Patent Reform in the 112th Congress: Innovation Issues (PDF)
Source: Congressional Research Service (via Federation of American Scientists)
Congressional interest in patent reform has increased as the patent system becomes more significant to U.S. industry. Patent ownership is perceived as an incentive to the technological advancement that leads to economic growth. Yet, this augmented attention to patents has been accompanied by persistent concerns about the fairness and effectiveness of the current system. Several studies, including those by the National Academy of Sciences and the Federal Trade Commission, recommended reform of the patent system to address perceived deficiencies in the operation of the patent regime. Other experts maintain that major alterations in existing law are unnecessary and that the patent process can adapt, and is adapting, to technological progress.
Two omnibus patent reform bills introduced in the 112th Congress, S. 23, the America Invents Act, and H.R. 1249, the Leahy-Smith America Invents Act, would make significant changes to the patent system. Both bills would adopt a first-inventor-to-file priority system, allow assignee filing, establish USPTO fee-setting authority, provide for post-issuance review proceedings at the USPTO, and introduce other reforms. Several of these proposals have been the subject of discussion within the patent community for many years, but others present more novel propositions.
Although S. 23 and H.R. 1249 have many similarities, the two bills differ in some respects. For example, S. 23 would address the residency requirement of judges serving on the U.S. Court of Appeals for the Federal Circuit, while H.R. 1249 would not. Unlike S. 23, H.R. 1249 would significantly broaden patent law’s first inventor defense. Other distinctions with respect to funding for the USPTO and other topics exist as well.
While the provisions of the proposed legislation would arguably institute the most sweeping reforms to the U.S. patent system since the 19th century, many of these proposals, such as pre- issuance publication and prior user rights, have already been implemented in U.S. law to a more limited extent. These and other reforms, such as the first-inventor-to-file priority system and post- grant review proceedings, also reflect the decades-old patent practices of Europe, Japan, and our other leading trading partners.
Some observers are nonetheless concerned that certain of these provisions would weaken patent rights, thereby diminishing incentives for innovation. Other experts believe that changes of this magnitude, occurring at the same time, do not present the most prudent course for the patent system. Patent reform therefore confronts Congress with difficult legal, practical, and policy issues, but also with apparent possibilities for altering and possibly improving the legal regime that has long been recognized as an engine of innovation within the U.S. economy.
<strong>On file sharing with indirect Network effects between concert ticket sales and music recordings (PDF)
Source: Research Papers in Economics
This paper analyses the interdependency between the market for music recordings and concert tickets, assuming that there are positive indirect network effects both from the record market to ticket sales for live performances and vice versa. In a model with two interrelated Hotelling lines prices in both markets are corrected downwards when compared to the standard Hotelling model. Also, file sharing has ambiguous effects on firms’ profitability. As file sharing can indirectly increase demand for live performances overall profits can either increase or decrease, depending on the strength of indirect network effects. Finally, file sharing may induce firms to switch from the traditional business model with two separate firms to an integrated business model where one agency markets both records and concerts (so-called 360 degree deals).
Campaigns, Copyrights, and Compositions: A Politician’s Guide to Music on the Campaign Trail
Source: Public Knowledge
If you think the recent set-to between Tom Petty and GOP presidential hopeful Rep. Michele Bachmann (R-MN) sounds familiar, you’re not alone. The scuffle over Bachmann’s use of “American Girl” is hardly the first time a politician has come under fire for using a song without the artist’s permission. Backlash from angry artists has left candidates from 1996 Republican presidential nominee then-Sen. Bob Dole (Sam & Dave’s “I’m a Soul Man” in 1996) to then-Sen. Barack Obama (again Sam & Dave, this time with “Hold On, I’m Comin’” in 2008) singing the blues.
Remarkably, in many cases the artist lacks legal standing to prevent the use of his song on copyright grounds. He does, however, have a number of other rights of action, as well as the pedestal from which to generate bad publicity.
The fallout from these incidents is messy, but entirely avoidable with a little footwork and know-how. So, to all politicians: keep this checklist handy. You’re about to get a crash-course in how to avoid eliciting an angry public statement from a pop icon.